The Evolution of Three-Foot Laws for Passing Cyclists

It is Bike Month!  Steve Magas and I wrote an article for lawyers on Ohio’s and Kentucky’s Three Foot Laws for Cyclists in this month’s Cincinnati Bar Association’s monthly publication, The Report.  Here is a link to the SHORT VERSION of that article which starts on page 10.

The following is the longer version of that article for those who would prefer to see the full citation of the laws at issue.

Evolution of Three-Foot Laws for Passing Cyclists

By Bike Lawyers Chris Carville [[email protected]]
& Steve Magas [[email protected]]

Wisconsin was the first state to recognize the vulnerability of cyclists on its roadways and enacted the United States’ first Three-Foot Law in 1973 to protect riders.  Since 1973, several more states have since enacted such measures.

Thirty-three states: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Virginia, Utah, Washington, West Virginia, Wisconsin and Wyoming and the District of Columbia have enacted passing laws that require the motorist to leave at least three feet or more when passing a bicyclist.

North Carolina has a two-foot passing requirement for motorists.  However, North Carolina also allows passing in a no-pass zone so long as a motorist leaves four feet of clearance between the motorist and cyclist. [Sidenote: North Carolina is also one of the very few states that maintain a strict “contributory negligence” defense such that if a cyclist is hit by a car the motorist “wins” if the cyclist is even 1 PERCENT negligent].

Two states have laws that go beyond the three-foot zone of protection. Pennsylvania has a four-foot passing law. South Dakota enacted a two-tiered passing law in 2015.  South Dakota requires a three-foot passing requirement on roads with posted speeds of thirty-five miles per hour or less and a minimum of six feet separation for roads with speed limits greater than thirty-five miles per hour.

The following five states — Delaware, Kentucky, Nevada, Oklahoma and Washington — require a motorist to completely change lanes when passing a bicyclist if there is more than one lane proceeding in the same direction.

Eight states have general laws that provide that motorists must pass at a “safe distance.” These laws typically state that vehicles must pass bicyclists at a safe distance and speed; Montana’s law, for example, requires a motorist to “overtake and pass a person riding a bicycle only when the operator of the motor vehicle can do so safely without endangering the person riding the bicycle.”

In the E.U., where cyclists account for a higher percentage of total traffic deaths [8%] than the U.S. [2%], France, Spain, Germany, Belgium and Portugal have passed laws requiring motorists to pass cyclists at a distance of 1.5 meters. There are also more aggressive laws and fines in the E.U. for distraction, phone use and other violations that put vulnerable users of roads at risk.

 Ohio’s Three-Foot Law:  R.C. 4511.27

Ohio enacted its Three Foot Law in 2017.  Prior to 2017, Ohio was in the “safe distance” passing law category.   Today, Ohio’s Three Foot Law can be found in Revised Code 4511.27 entitled “Rules Governing Overtaking and Passing of Vehicles.”

(A) The following rules govern the overtaking and passing of vehicles or trackless trolleys proceeding in the same direction:

(1) The operator of a vehicle or trackless trolley overtaking another vehicle or trackless trolley proceeding in the same direction shall, except as provided in division (A)(3) of this section, signal to the vehicle or trackless trolley to be overtaken, shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle or trackless trolley. When a motor vehicle or trackless trolley overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.

(2) Except when overtaking and passing on the right is permitted, the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle at the latter’s audible signal, and the operator shall not increase the speed of the operator’s vehicle until completely passed by the overtaking vehicle.

Note the language of the statute’s safe passing standard: “When a [motorist] overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.”  Contrast this statutory language with the United States’ first Three-Foot Law in Wisconsin: “Exercise due care, leaving a safe distance, but in no case less than three (3) feet clearance when passing the bicycle and maintain clearance until safely past the overtaken bicycle.”  Wis. Stat. § 346.075.  Wisconsin’s three-foot law contains clear and mandatory minimum.  Ohio’s three-foot law invites debate over situations where less than three feet could be “considered” safe.

The consequences of Ohio’s less mandatory statutory language would be more significant in traffic court or a criminal court where defense counsel for the accused could argue that the unique circumstances of his or her client’s case justified a two-foot or one-foot (or less) pass as “safe.”

In fact, the language drafted by the Ohio Bicycle Federation and submitted by was tougher – stating that a “safe distance shall not be less than three feet.” However, one legislator held up the passage of the Three-Foot bill until the langauge was changed to the current language.  Current Ohio law states [perhaps less clearly] that a three-foot passing clearance is the minimum distance to be deemed “safe.”

There are no statewide resources available that track citations pursuant to R.C. 4511.27 in Ohio’s eighty-eight counties.  Such a task would likely require Public Records Requests to some 900 LEO’s – law enforcement organizations.  We have no data as to how often Ohio’s Three-Foot Law is being enforced and with what level of success.  One concern expressed at the time of passage was the potential for the law to be used as a pretext to generate a “stop” of someone police simply wanted to hassle or talk to. No such data or research exists on this topic so far as we are aware.

In civil cases R.C. 4511.27 provides a standard to argue negligence per se in a case arising out of a crash where a cyclist is injured or killed by a passing motorist.

A cyclist always “loses” in a crash with a passing motorist.  Absent evidence of a dramatic and sudden swerve or change in direction of the cyclist, the fact that the crash occurred as a car was trying to pass a cyclist is damning evidence that the motorist violated R.C. 4511.27 and there is tremendous value in that.  The statute sets up a per se safety standard of a three-foot buffer for passing a cyclist.  If a cyclist can reach out and touch any part of a passing vehicle, the vehicle is clearly too close.

Although not explicitly stated, there is also a subtle burden shifting to the motorist to prove his or her pass was made at a safe distance when less than three feet was afforded the cyclist.  What we typically find is a suggestion by the motorist that she/he was passing “lawfully” at three feet or more when the cyclist “suddenly swerved” into the side or path of the car.  These “suicide swerve” suggestions can often be proved, or disproved, through the testimony of an expert in bicycle crash reconstruction.

Tension Between R.C. 4511.27 and 4511.55

AFRAP is short for “As Far Right As Practicable” and is a universal Bike Law term in the United States. Every state has some version of an AFRAP law. Ohio’s Three-Foot Law must be read in conjunction with Ohio’s AFRAP Law for Cyclists which is found in R.C. 4511.55:

(A) Every person operating a bicycle or electric bicycle upon a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction.

(B) Persons riding bicycles, electric bicycles, or motorcycles upon a roadway shall ride not more than two abreast in a single lane, except on paths or parts of roadways set aside for the exclusive use of bicycles, electric bicycles, or motorcycles.

(C) This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.

The word “practicable” is used over 400 times in the Ohio Revised Code… and is undefined throughout.

The word is used many different ways but is always used to reflect an imprecise situation.  R.C 4511.36 states that a right turn must be made “as close as practicable to the right-hand curb…”  R.C. 1567.39 requires roadways to be maintained “… as free as practicable…” from bottom irregularities and muddy conditions. Phrases like “as speedily as practicable” and determining if something is “reasonably practicable” abound.

Prior to the amendment of R.C. 4511.55 in the “Better Bicycling Bill” of 2006, we used to argue that “practicable” MUST mean “reasonable” and “safe.” We argued that the legislature would never mandate that cyclists behave in a way that was not reasonable and safe.

In 2006, the section was amended and the “C” section was added as an exception to the AFRAP Rule. In drafting 4511.55(C) our intent was to add these elements of “reasonable” and “practicable” but also to set out some common examples of situations cyclists encounter daily that would necessitate NOT riding “as far right as practicable” – such as parked cars, debris and the like. However, the last sentence of R.C. 4511.55(C) bears special attention. It is, frankly, the exception that swallowed the Rule.

R.C. 4511.55(C) states that one does not need to operate a bicycle AFRAP “…if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.”

If you think about, and look at, the places that bicyclists ride bikes on Ohio’s roads you realize that virtually EVERY road in Ohio is “too narrow” to be safely shared by a cyclist and a motor vehicle side-by-side.

Keri Cafferty, a Florida graphic artist and bicycle advocate, created the graphic below which shows how a truck and bicycle cannot safely share a fourteen foot wide lane. Even when she allows only 40 inches of space for the cyclist, the truck cannot pass at three feet without leaving the lane. Virtually EVERY road on which cyclists ride in Ohio is less than fourteen feet wide. 4511.55(C) allows you to avoid ANY argument of AFRAP at all.

[SIDENOTE: If a cyclist is charged with violating R.C. 4511.55 there is also a constitutional argument that the traffic prohibition is “void for vagueness” and therefore unenforceable, but that makes for a separate and much longer article. See, e.g.,  U.S. v. Davis (2019), 139 S. Ct. 2319. (“In our constitutional order, a vague law is no law at all…”)}

Where a cyclist is injured as a result of a passing crash, R.C. 4511.55 can come into play if the crash occurs within the road’s white lines.  The motorist in that situation will invariably assert that there was sufficient “roadway” [or “shoulder” or “berm”] for the cyclist to ride more safely or “more practicably” to the right to have avoided the crash.

A cyclist on the “roadway” is required to follow the rules of the road.  A cyclist trying to ride “as far right as practicable,” might end up weaving along the right-most portion of the roadway in a dangerous manner, and appear erratic and unpredictable.  Fortunately, R.C. 4511.55(C) contemplates this tension and provides that a cyclist is not obligated to ride as far right as possible, or on the “edge of the roadway” when it is unsafe or unreasonable to do so.  The safety valve of Subsection (C) offers a bit of definitional depth to what is “practicable” by allowing a cyclist to ignore the “AFRAP” law.

The “too narrow” provision of Subsection (C) is a secret weapon. We argue forcefully that virtually EVERY lane in Ohio on which cyclists are riding is “too narrow” to be shared. Certainly, a fourteen-foot lane does NOT allow “sharing.” Subsection (C) allows the cyclist to “Take The Lane” – a phrase used in teaching “transportation” cycling which means to choose a lane position that is adequately into the lane, and away from the edge, so as to make the cyclist more conspicuous to all traffic. Since virtually every lane in Ohio is “too narrow” to be shared, then virtually every lane in Ohio is a lane in which the cyclist can choose a safer lane position without being in violation of the AFRAP law.

Kentucky’s Three Foot Law: KRS 189.340

Subsection (2) of KRS 189.340 was amended in 2018 to include bicycles and further amended in 2019 to include electric low-speed scooters.  In its present form, KRS 189.340(2) states:

(a) Vehicles overtaking a bicycle or electric low-speed scooter proceeding in the same direction shall:

  1. If there is more than one (1) lane for traffic proceeding in the same direction, move the vehicle to the immediate left, if the lane is available and moving in the lane is reasonably safe; or
  2. If there is only one (1) lane for traffic proceeding in the same direction, pass to the left of the bicycle or electric low-speed scooter at a distance of not less than three (3) feet between any portion of the vehicle and the bicycle or electric low-speed scooter and maintain that distance until safely past the overtaken bicycle or electric low-speed scooter. If space on the roadway is not available to have a minimum distance of three (3) feet between the vehicle and the bicycle or electric low-speed scooter, then the driver of the passing vehicle shall use reasonable caution in passing the bicyclist or electric low-speed scooter operator.

(b) The driver of a motor vehicle may drive to the left of the center of a roadway, including when a no-passing zone is marked in accordance with subsection (6) of this section, to pass a person operating a bicycle or electric low-speed scooter only if the roadway to the left of the center is unobstructed for a sufficient distance to permit the driver to pass the person operating the bicycle or electric low-speed scooter safely and avoid interference with oncoming traffic. This paragraph does not authorize driving on the left side of the center of the roadway when otherwise prohibited under state law.

Unlike Ohio’s Revised Code 4511.27, Kentucky’s Three-Foot Law includes a very clear prohibition on overtaking or passing a cyclist: “Vehicles overtaking a bicycle . . . proceeding in the same direction shall: . . .  If there is only one lane for traffic proceeding in the same direction, pass to the left of the bicycle . . . at a distance of not less than three feet between any portion of the vehicle and the bicycle or electric low-speed scooter and maintain that distance until safely past the overtaken bicycle or electric low-speed scooter.”  KRS 189.340(2)(a).

Simple and straightforward, right?  Yep.  Whether in traffic court or a civil suit arising from an injured or killed cyclist, the minimum standard is three feet, period.  End of story.  A motorist is prohibited from passing a cyclist any closer than three feet.

Unlike Ohio, Kentucky does not have an AFRAP statute like Ohio’s Revised Code 4511.55 specifically addressing cyclist.  Rather, KRS 189.300 broadly states that “any vehicle when upon a highway shall travel upon the right side of the highway whenever possible[.]”  As discussed below, the “keep right rule” as applied to cyclists is set forth in  601 KAR 14:020 Section 7(3)(a) through (i).  The Administrative Regulations do not regulate “practicability” as seen in R.C. 4511.55.

So, the question of where the cyclist is riding on a Kentucky highway is of paramount importance.  A strict reading of KRS 189.340(2)(a) would require a three-foot buffer under all conditions when passing or overtaking a cyclist.  Although untested, there is an argument that if the cyclist did not have a right to be on the roadway in the first instance, then KRS 189.340(2)(a) might not apply.  If there is a crash with injuries or death as a cyclist is overtaken and struck by a motorist, the motorist may argue contributory negligence on the part of the cyclist for riding in an area where he or she did not have a legally protected right to ride.

For example, a cyclist is prohibited from riding in a roadway where there is a “designated bike lane” in Kentucky.  This is a strict prohibition.  601 KAR 14:020 Section 7 states as follows:

Section 7. Operation of Bicycles. (1) A bicycle shall be operated in the same manner as a motor vehicle, except that the traffic conditions established in paragraphs (a) and (b) of this subsection shall apply.

(a) A bicycle may be operated on the shoulder of a highway unless prohibited by law or ordinance.

(b) If a highway lane is marked for the exclusive use of bicycles, the operator of a bicycle shall use the lane unless:

  1. Travelling at the legal speed;
  2. Preparing for or executing a left turn;
  3. Passing a slower moving vehicle;
  4. Avoiding a hazard;
  5. Avoiding the door zone of a parked vehicle; or
  6. Approaching a driveway or intersection where vehicles are permitted to turn right from a lane to the left of the bicycle lane.

Simply stated, unless one of the six exceptions in Section 7(b) applies, 601 KAR 14:020 Section 7 makes the use of bike lanes mandatory.

Similarly, a cyclist is prohibited from riding within the right-of-way of a “fully controlled access highway” (603 KAR 5:025 Section 4) which is, in laymen’s terms, a highway that provides an unhindered flow of traffic, with no traffic signals.  601 KAR 1:019(3) defines a “fully controlled access highway” as “a highway that: (a) gives preference to through traffic[.]”

So long as the foregoing prohibitions (use of available “designated bike lane” and nonuse of right-of-way of a “fully controlled access highway”) are not at issue and the cyclist, at worst, is in the shoulder of a highway, Kentucky’s protective three-foot buffer would apply.

Even before the passage of KRS 189.340, the Kentucky Supreme Court recognized that a motorist can be guilty of negligence per se when overtaking a cyclist on Kentucky roadways.  In Previs v. Daily (2005), 180 S.W.3d 435, 436 the defendant approached the plaintiff cyclist from behind “driving a pick-up truck with an eight-foot bed and camper top [and] was pulling two flatbed wagons, making the total length of the vehicle approximately forty-eight feet.”  The Supreme Court noted that defendant admitted that he did not look in his rearview mirror when returning his pickup truck and trailers to the right lane as he was passing the plaintiff.  Id. at 438.  The Supreme Court was not sympathetic to defendant’s excuse for returning to the right lane to “avoid a potential collision with oncoming traffic” finding “[i]f the terrain was such that Dailey could not see oncoming traffic, then he certainly was in violation of his duty to exercise ordinary care for the safety of other persons using the roadway. See KRS 189.340(4).”  Id. at 438.

The Supreme Court reversed the trial court’s failure to grant the plaintiff’s motion for directed verdict against the defendant and the case was remanded for a new trial.  Id. at 439.

However, when the case was tried on remand the entire focus of the new trial was the conduct of the cyclist and the Supreme Court held that a directed verdict against the motorist was proper.  Further, new jury instructions were utilized by the trial court that placed duties of care on plaintiff based on KRS 189.350, entitled “Assistance in passing or overtaking” between vehicles.  The trial court instructed the jury that where the plaintiff cyclist was being overtaken, she had duties to:

[A] To keep lookout to the rear for other vehicles near enough to be affected by the intended movement of her bicycle;

  1. If she was about to be overtaken and passed by the Defendant’s vehicle, to give way to the right in favor of the Defendant’s vehicle;
  2. If she became aware that the Defendant’s vehicle was passing or attempting to pass, to give the Defendant such assistance and cooperation as the circumstances reasonably demanded in order to obtain clearance and avoid an accident; and
  3. To exercise ordinary care generally to avoid collision with other persons or vehicles on the highway.

The second jury found plaintiff to be 50% contributorily negligent.  Some cyclists in Kentucky will refer to the Previs II case as giving rise to a cyclist’s “duty to give way” to passing motorists.

Neither Previs I, supra nor Previs II, 2006-CA-002243 have been cited in any cases since KRS 189.340 was amended to include three-foot buffers when passing cyclists in Kentucky in 2018.  One could argue that KRS 189.340 (a)(2) controls as the more specific regulation of vehicular passing (between motorist and cyclist) rather than the general regulation of vehicular passing (simply between “vehicles”). “[W]here there is both a specific statute and a general statute seemingly applicable to the same subject [the rule] is that the specific statute controls.” Bevin v. Beshear, 526 S.W.3d 89, 91 n.6 (Ky. 2017) (citations omitted).  This argument is further buttressed by the fact that KRS 189.340 was amended in 2018 as compared to the 1994 amendment of KRS 189.350.

Previs I, supra still stands for the proposition that the contributory negligence of a cyclist may be at issue in a passing or overtaking crash between a motorist and a cyclist.  However, KRS 189.340(2)(a) should govern over KRS 189.350’s “duty to give way” where the overtaken vehicle is a bicycle.

Conclusion

Cyclists are vulnerable users of Kentucky and Ohio roadways.

Kentucky’s 2021 numbers are still being tabulated.  Per Kentucky’s Annual 2020 Traffic Collision Facts Report, 337 cyclists were involved in crashes with motor vehicles.  The 2019 Report documented 330 cyclist-motor vehicle crashes.

Ohio averages about 1500 cycling accidents per year.  2020 and 2021 were not good years for cycling fatalities.  Ohio usually averages 16-17 cycling fatalities per year, but those numbers are skewing up.  In 2020, 21 cycling fatalities occurred.  This unfortunate figure is up further in 2021 with 28 cycling fatalities.

Both R.C. 4511.27 and KRS 189.340 are designed to do one thing: protect a vulnerable user of Ohio and Kentucky Roadways.  Each State’s legislature went about affording the three-foot differently, but the aim of the public policy is the same, and application of each statute should be made by judges and juries with the protection of vulnerable users in mind.

 

 

 

An Embarrassing Ride with My Nephew

Merriam-Webster Dictionary defines a “Blog” as:

As a Bike Lawyer, I blog about “The Law” and how it affects bicyclists in Kentucky and Ohio.  I also blog about bicycle advocacy, bicycle happenings, and bicycle riding and racing.  This week, however, I choose to write about a recent cycling experience with more than a modest amount of embarrassment.

Cycling is a lot of things to a lot of different people.  Cyclists come in all sizes and shapes and varieties of disciplines and interests.  But we all have one thing in common – we love our cycling.  Being a cyclist is part of our identities.  We share that part of our personality with family and friends.  Most cyclists can attest to involuntarily becoming the resident expert at work every July as Le Tour rolls through France.  In those moments we are ambassadors for the cycling community.

We make new friends on group rides and enjoy old friends on weekend rides.  When we ride with friends, we often solve all the world’s problems and at times work through personal difficulties on those rides.  There is a kinship at the center of cycling.  That kinship is all the more special when you can share it with family.

I am approaching half a century on the planet and have lasted long enough that I can ride with younger family members.  Last week I had the treasure of getting to ride with my nephew Taylor who was in town for a family wedding.

Miles of Bike Paths Along C-470

Taylor is one of a kind.  He is an Eagle Scout, an Architect, and presently a Wanderer.  J.R.R. Tolkien reminds us that “Not all those who wander are lost” and that applies to Taylor.  Taylor has always loved the outdoors from Cub Scouts to Adult Life.  He spent his Summers at Philmont Scout Ranch and now his adventures are headquartered in Denver, Colorado.  He has hiked the entire 2,650 miles of the Pacific Crest National Scenic Trail (PCT) and as I pen this blog, he is somewhere in Maine hiking the Appalachian Trail (AT) from north to south. In his words, he is “chasing summer” along the trail.  There is more than a modest amount of irony in those words as I watch a young man challenge the convention of hiking the AT from south to north and more broadly challenge the convention of spending the summer of his life at a desk job.

Can you tell I am fond of Taylor?

So, I was very much looking forward to a ride with him while we had him in town.  When in Denver Colorado he rides a fixie, a gravel bike, and a Pedicab for extra cash.  He regaled me bike packing stories and tales of riding Mount Lookout, Green Mountain, South Table and North Table Mountains.  When Taylor goes out for beers he can connect over 10 miles of protected bike paths from Golden, Colorado to Morrison, Colorado.

I did not have anything on par with Taylor’s Colorado cycling options in Northern Kentucky and Southwestern Ohio (although we have plenty of hills).  Regardless, we rolled out of my garage at about 3:15 on a Thursday.  We had planned on a 2:00 start, but as work would have it, I was running late.  We road single file, then two-abreast and back to single file along some rollers just north of my house.

Taylor’s Bike Packing Set Up

Taylor’s Fixie

Strike One – Am I Entitled?

When we reached the first lighted intersection a middle-aged woman rolled up to us at the intersection and with her window down declared (I later learned the question mark was rhetorical) “Do you feel entitled?”

Entitled?  I thought to myself.  This is weird because this woman literally had a trunk rack with a bike on it!  So, facing a fellow cyclist I took stock of the situation.  What did I do wrong?  We were 2 miles into the ride.  I had a blinky on.  Taylor had a blinky on.  We both had helmets.  We were riding at 17 miles per hour (uphill) and alternated between two abreast and single depending on traffic.  She could not have been behind us for more than a quarter-mile.

So that left me with two alternatives: I must have felt entitled to be on the road in the first place or I must have felt entitled to ride two abreast – both legal and neither really holding her up.  I did note that there was zero traffic behind her at the intersection.

So, I asked her for clarification: “To what did I feel entitled?”  This was an earnest question as I was genuinely confused and had clearly irritated a fellow cyclist.  Her response?  “You know what I mean.”  And she drove off in a huff.

That. Was. Weird.

The middle portion of the ride was on a bike path so Taylor and I chatted that conundrum up for at least fifteen minutes and we both remain confused to this day about what she really meant.

Regardless, that was an unfriendly way to start our ride.

Strike Two – What About That Three Foot Law?

Once we exited the bike path, we were on old country roads with zero shoulder and a white line.  I have nothing against old country roads, I kind of like them to be honest.  With a delayed start time, it must have been around 4:30 when we hit that patch of roadway and we had vacillating adherence by our fellow motorists with the three-foot law as they passed during growing rush hour traffic.  Getting buzzed is par for the course, but again, embarrassing to me as I was showing Taylor one of my local routes.  I had to wonder; Did Taylor get the same treatment in Colorado?  Colorado has a three-foot law.  I was too embarrassed to ask.

Things have a way of occurring in threes.

Strike Three – The All-Black SUV

As we descended off the hardest segment of the ride, Eight Mile Wall, we approached a four-way intersection with a stoplight.  We were facing west with a left turn lane.  As a matter of personal policy, I always enter the roadway as I approach intersections.  A cyclist in the roadway is more visible and avoids the risk of being clipped by a right-turning vehicle if the cyclist remained in the shoulder.   This approach also allows you to stay out of the way of any motorists who are taking a right turn on a red light.

Well, none of this sat well with the fella in the All-Black Ford Expedition EL with Black Rims who was immediately behind us in the intersection.  Here comes Strike Three!  In an attempt to get our attention, he laid into that Ford Expedition’s horn with multiple five-second horn blows.  This had the intended effect of getting my attention and I turned around to find him gesticulating madly in between horn blows.  I interpreted his hand signals to read something along the lines of You-Have-No-Right-To-Be-Where-You-Are-Get-Out-Of-My-Three-Quarter-Ton-SUV’s-Way.  It was almost like I hurt his beloved SUV’s feelings and he felt honor-bound to defend his slighted vehicle.  His face was very red.

We did not move.  I offered him the opportunity to roll down his window and use words instead of his horn to communicate with us.  He declined.

Regardless, at the end of the day, all of this: (1) angry motorist number 1; (2) the close passes on narrow roads; and (3) the excessive use of one’s SUV’s horn, all left me embarrassed.  Taylor is too kind to complain about it, but our community sure did not give him a warm reception as a cyclist.

However, the ride was not a complete bust.  He did ask me to text him a screenshot of the Eight Mile Wall Segment and its 16% grade.  I hope he adds that part to his story when he is chatting with his Denver buddies about riding back home because the rest was not very pretty.

 

 

Excuse Me For Impeding – Differing Laws for Ohio and Kentucky Cyclists

So, if a Cyclist has the right to ride in the roadway and a right to ride two-abreast, does he or she have a right to impede traffic?

In Ohio…

In Ohio, you are not impeding traffic presuming that you are operating your bicycle at or near its maximum speed.

In Ohio, R.C. 4511.22 states:

(A) No person shall stop or operate a vehicle, trackless trolley, or streetcar at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.

“Vehicles” are broadly defined in Ohio.  Pursuant to R.C. 4501.01(A), a “vehicle means everything on wheels or runners, including motorized bicycles, but does not mean electric personal assistive mobility devices, vehicles that are operated exclusively on rails or tracks or from overhead electric trolley wires, and vehicles that belong to any police department, municipal fire department, or volunteer fire department, or that are used by such a department in the discharge of its functions.”

Bicycles are defined by R.C. 4501.01(K) as “every device, other than a device that is designed solely for use as a play vehicle by a child, that is propelled solely by human power upon which a person may ride, and that has two or more wheels, any of which is more than fourteen inches in diameter.”

Given the broad definition of “vehicle” in R.C. 4511.22, a Cyclist “operating a vehicle [including a bicycle]” who travels at “an unreasonably slow speed” could be guilty of “imped[ing] or block[ing] the normal and reasonable movement of traffic[.]”  Measured against a motor vehicle, virtually any nonprofessional cyclist would be operating his or her bicycle at an unreasonably slow speed could impede the normal and reasonable movement of traffic.  Steven O. Selz was charged with just such an offense by the City of Trotwood.  Mr. Selz was accused of violating Section 333.04(a) of the Trotwood Municipal Code, which provided (similar to R.C. 4511.22):

No person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with [the] law.

Mr. Selz was convicted of this offense in Traffic Court.  Fortunately for Mr. Selz and Cyclists in Ohio, he was capably represented by my friend and colleague, Steve Magas.  Section 333.04(a) of the Trotwood Municipal Code could not be fairly read to prohibit any bicycle on an Ohio roadway.  Steve argued, with success, that Mr. Selz was operating his “vehicle” (also known as a bicycle) at the maximum speed at which he could possibly operate his bicycle – 15 mph uphill!

Steve analogized Mr. Selz’s operation of his bicycle to that of an operator of a corn combine in a prior case, where that court found: “The corn combine, was traveling at or near its highest possible speed. To permit the jury to impose liability on the basis of the speed of the combine would be tantamount to a holding that the operation of farm machinery such as appellants’ on the public roadway typically constitutes negligence per se. We cannot endorse such a holding. Title 68A [of the Georgia Code] does not exclude farm machinery from the public roads.”

Trotwood v Selz was decided in 2000.  Two years later, pursuant to Senate Bill 123, R.C. 4511.22 was amended to include Subsection (C) which now includes language very similar to the Second District’s Holding in Trotwood v Selz:

(C) In a case involving a violation of this section, the trier of fact, in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator.

So the moral of the story in Ohio is that a Cyclist will not be impeding traffic if he or she is operating their bicycle at the upper end of their capabilities, which may beg the question of what that particular Cyclist’s capabilities were in the first instance.  A professional cyclist’s “capabilities” going uphill on a roadway will be much different than a weekend warrior’s capabilities.  These are arguments that may fall on deaf ears as you are issued a citation by a police officer but may find a receptive ear by a municipal or state court judge or a jury of your peers if that matter goes that far in the justice system.

In Kentucky…

Kentucky Cyclists do not face similar exposure to criminal convictions.

In Kentucky, KRS 189.390(7) states:

A person shall not drive a motor vehicle at a speed that will impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

The difference, like the devil, is in the detail.  KRS 189.390(7) is limited to motor vehicles.

Like Ohio, vehicles are broadly defined in Kentucky.  A bicycle will be considered a “vehicle” under the Kentucky Revised Statutes as a bicycle is an “agency” for ”the transportation of persons over or upon the public highways of the Commonwealth.”

KRS 189.010(19)(a) defines a “vehicle” as including:

1. All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth; and

2. All vehicles passing over or upon the highways.

Bicycles are specifically exempted from “slow vehicle” signage in Kentucky. A bicycle does not have to display a slow-moving vehicle emblem that is required of other “slow-moving vehicles.”

KRS 189.830 states as follows:

(1) The slow-moving vehicle emblem shall be restricted to the uses specified herein and the use on any other type of vehicle or on other objects is prohibited.

* * *
(5) The slow-moving vehicle emblem shall not be used on a bicycle.

So the short answer to the pending impeding question is: Cyclists in Ohio are broadly defined as vehicle operators and may be subject to prosecution for impeding traffic, but a good lawyer should be able to “get you off” (because you were innocent in the first instance) pursuant to Trotwood v Selz (2000 2nd Dist.), 139 Ohio App.3d 947 and subsection C of R.C. 4511.22 arguing that you were pedaling within your “capabilities”; and Cyclists in Kentucky should not be charged in the first instance because the impeding traffic statute, KRS 189.390(7), is narrowly limited to motor vehicles, not all vehicles.

Three Foot Law Protection for Cyclist in Ohio and Kentucky – Part 1 of 2

On my second visit to the Two Johns Podcast, we discussed both Ohio’s and Kentucky’s Three Foot Passing Laws and how they protect Cyclists. This article is the first of two comparing and contrasting Ohio’s Three Foot Law for Cyclists with Kentucky’s Three Foot Law for Cyclists.

Our friends at the National Conference of State Legislatures offer us the following summary:

In 1973, Wisconsin became the first state to enact such a law; several more states have since enacted such measures. As of April 2020, 33 states—Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Virginia, Utah, Washington, West Virginia, Wisconsin and Wyoming—and the District of Columbia have enacted passing laws that require the motorist to leave at least 3-feet or more when passing a bicyclist.

North Carolina has a 2 feet passing requirement for motorists, and also allows passing in a no-pass zone if a motorist leaves 4 feet clearance.

Two states have laws that go beyond a 3-feet passing law. Pennsylvania has a 4-feet passing law. South Dakota enacted a two-tiered passing law in 2015; with a three-foot passing requirement on roads with posted speeds of thirty-five miles per hour or less and a minimum of six feet separation for roads with speed limits greater than thirty-five miles per hour.

Additionally, five states, Delaware, Kentucky, Nevada, Oklahoma and Washington, require a motorist to completely change lanes when passing a bicyclist if there is more than one lane proceeding in the same direction.

In 8 other states, there are general laws that provide that motorists must pass at a “safe distance.” These laws typically state that vehicles must pass bicyclists at a safe distance and speed; Montana’s law, for example, requires a motorist to “overtake and pass a person riding a bicycle only when the operator of the motor vehicle can do so safely without endangering the person riding the bicycle.”

Ohio enacted its Three Foot Law in 2017.  As will be discussed in Part 2 of this series of Articles, Kentucky enacted its Three Foot Law in 2018.

Ohio’s Three Foot Law can be found in Revised Code 4511.27 entitled “Rules Governing Overtaking and Passing of Vehicles.”

(A) The following rules govern the overtaking and passing of vehicles or trackless trolleys proceeding in the same direction:

(1) The operator of a vehicle or trackless trolley overtaking another vehicle or trackless trolley proceeding in the same direction shall, except as provided in division (A)(3) of this section, signal to the vehicle or trackless trolley to be overtaken, shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle or trackless trolley. When a motor vehicle or trackless trolley overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.

(2) Except when overtaking and passing on the right is permitted, the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle at the latter’s audible signal, and the operator shall not increase the speed of the operator’s vehicle until completely passed by the overtaking vehicle.

(3) The operator of a vehicle or trackless trolley overtaking and passing another vehicle or trackless trolley proceeding in the same direction on a divided highway as defined in section 4511.35 of the Revised Code, a limited access highway as defined in section 5511.02 of the Revised Code, or a highway with four or more traffic lanes, is not required to signal audibly to the vehicle or trackless trolley being overtaken and passed.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
If the offender commits the offense while distracted and the distracting activity is a contributing factor to the commission of the offense, the offender is subject to the additional fine established under section 4511.991 of the Revised Code.

Note the language of the statute’s “requirement”: “When a [motorist] overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.”  Contrast this statutory language with the United States’ first Three Foot Law: “Exercise due care, leaving a safe distance, but in no case less than three (3) feet clearance when passing the bicycle and maintain clearance until safely past the overtaken bicycle” as found in Wisconson’s Wis. Stat. § 346.075.  When one drills down into the detail of Ohio’s Three Foot Law, it reads more like a suggestion than a mandatory prohibition on passing distances between a Cyclist and an overtaking motorist.

The consequences of Ohio’s less mandatory statutory language would be more significant in traffic court or a criminal court where defense counsel for the accused will invariably argue that the unique circumstances of his or her client’s case justified a one or two-foot pass as “safe.”  There are scant resources available that track citations pursuant to R.C. 4511.27 in Ohio’s eighty-eight counties.  So we have little idea of how often Ohio’s Three Foot Law is being enforced and with what level of success.  However, we do have a standard to enforce in a civil case where a cyclist is injured or killed as a result of a crash with a passing motorist.  A cyclist rarely wins – like never – in a crash with a passing motorist.  And the fact that the crash occurred is damning evidence that the motorist violated Ohio’s Three Foot Law and there is tremendous value in that.  Further, most citizens in Ohio have never read R.C. 4511.27 and only know that Ohio has a “Three Foot Law” designed to protect cyclists.  There is even more value in a conversation and increased awareness of legislation designed to protect cyclists in Ohio.

Ohio’s Three Foot Law must be read in conjunction with Ohio’s AFRAP Law for Cyclists which requires Cyclists to ride as “As-Far-Right-As-Is-Practicable.”  Ohio’s AFRAP requirement for Cyclists can be found in R.C. 4511.55:

(A) Every person operating a bicycle or electric bicycle upon a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction.

(B) Persons riding bicycles, electric bicycles, or motorcycles upon a roadway shall ride not more than two abreast in a single lane, except on paths or parts of roadways set aside for the exclusive use of bicycles, electric bicycles, or motorcycles.

(C) This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.

(D) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
If the offender commits the offense while distracted and the distracting activity is a contributing factor to the commission of the offense, the offender is subject to the additional fine established under section 4511.991 of the Revised Code.

“Practicable” is undefined anywhere in the Revised Code which leaves it in the eyes of the beholder – or a judge or a jury of your peers.  Where a cyclist is charged with violating R.C. 4511.55 there is a constitutional argument that the criminal prohibition is “void for vagueness” and therefore unenforceable, but that makes for a separate and much longer article.

Where a cyclist is injured as a result of a crash, R.C. 4511.55 can come into play if the crash occurs within the road’s white lines.  The motorist in that situation will invariably assert that there was sufficient “roadway” or “shoulder” or “berm” for the cyclist to ride more safely or “more practicably” to the right so as to have avoided the crash.  This sets up some very obvious tension for a cyclist using Ohio’s roads.  If you ride within what is commonly understood as the roadway or within the right lane so as to be established and predictable in your movements you could be criticized for not being more “practicable” and riding within the berm or shoulder (if available and practicable).  On the other hand, if you ride as far right as possible, you could be weaving along the right-most portion of the road/roadway and appear erratic and unpredictable.  You could also be exposing yourself and fellow cyclists (if on a group ride) to problematic tarmac and other hazards that find their way into a shoulder or berm.   Fortunately, R.C. 4511.55 contemplates this tension and provides that a cyclist is not obligated to ride as far right as possible, or on the “edge of the roadway”: “This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.”  Subsection (C) provides a safety-valve of sorts, allowing a cyclist to argue that the conditions at the “edge of the roadway” would not permit safe riding.  However, this does leave open the question of whether a cyclist is obligated to ride in an unobstructed or hazard-free shoulder or berm.

Cycling accidents that occur as a result of a motorist passing or overtaking a cyclist are fraught with peril.  If you are the victim of such an accident, do not hesitate to reach out to Chris at Carville Legal Counsel, LLC.  We offer FREE consultations. Chris can be reached at [email protected] or 513 600 8432.